On July 17, 2019, the Commission announced the opening of a formal investigation into Amazon’s use of sensitive independent retailer data that may potentially breach Article 101/102 TFEU.[1]

The Commission’s probe is likely focusing on Amazon’s dual role. On one hand, Amazon acts as host to third-party merchants who sell directly to consumers through Amazon’s marketplace. On the other hand, Amazon sells its own products on the same marketplace in competition with the third-party merchants. While publicly available information is currently scarce, the Commission preliminarily concluded that Amazon appears to be using retailer data collected on Amazon’s marketplace platform to boost its own sales. If Amazon’s conduct is found to be anticompetitive, Amazon might receive a substantial fine and will be required to change its business practices.[2]

The case is one of multiple Commission investigations against U.S. tech companies, including Google, Apple, Qualcomm, and reportedly also Facebook.[3] It follows public remarks from U.S. President Donald Trump against Commissioner Vestager alleging an aggressive EU antitrust enforcement policy against U.S. tech giants.[4]

In addition, Amazon has also faced a number of investigations at Member State level. On July 17, 2019, the Bundeskartellamt and the Austrian Federal Competition Authority closed their respective investigations into potentially abusive, discriminatory, and/or unfair provisions in Amazon’s agreements with marketplace sellers after securing modifications to Amazon’s terms.[5] In April 2019, the Italian Competition Authority announced that it was investigating whether Amazon abused its dominance in the market for “e-commerce platform intermediary services” by discriminating against sellers that use third- party logistics providers rather than Amazon’s logistics services, by demoting the position of their products in search results.[6]

In April 2019, the Luxembourg Competition Council also opened an investigation following complaints regarding an international company with European headquarters established in Luxembourg that offers its website and platform services to third-party merchants. Although unconfirmed (and without further public details about the substance of the complaints), this likely relates to Amazon.[7] In addition, in July 2019, the Luxembourg Competition Council rejected an abuse of dominance complaint and an application for interim measures by a retailer that was excluded from Amazon’s marketplace, including because there was insufficient evidence that Amazon held a dominant position.[8]

[1]      Amazon Marketplace (Case COMP/AT.40462), decision not yet published.

[2]      See https://www.businessinsider.com/amazon-eu-launches-antitrust-investigation-2019-7?r=US&IR=T.

[3]      Google Search (AdSense) (Case COMP/AT.40411), decision not yet published; Google Android (Case COMP/AT.40099), decision not yet published; Google Search (Shopping) (Case COMP/AT.39740), Commission decision of June 27, 2017; Aid to Apple (Case COMP/SA.38373), Commission decision of August 30, 2016; and Qualcomm (predation) (Case COMP/AT.39711), decision not yet published. The Commission is investigating Facebook’s sales platform and app data sharing methods. See https://www.bloomberg.com/news/articles/2019-07-02/facebook-is-latest-to-come-under-eu-s-antitrust-scrutiny.

[4]      See https://www.euractiv.com/section/global-europe/news/trump-takes-aim-at-vestager-she-hates-the-us/.

[5]      Bundeskartellamt Press Release, July 17, 2019, available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2019/17_07_2019_ Amazon.html;jsessionid=B281975501DCD8E72D1C24565336D969.2_cid362?nn=3 591568. See also Austrian Federal Competition Authority Press Release, July 17, 2019, available at: https://www.bwb.gv.at/en/news/detail/news/bwb_informs_amazon_modifies_its_terms_and_conditions-1/.

[6]      AGCM Press Release, April 16, 2019, available at: https://en.agcm.it/en/media/press-releases/2019/4/Amazon-investigation-launched-on-possible-abuse-of-a- dominant-position-in-online-marketplaces-and-logistic-services.

[7]      See https://concurrence.public.lu/dam-assets/fr/actualites/2019/2019-4-1-Communique-services-en-ligne-.pdf.

[8]      See https://concurrence.public.lu/fr/actualites/2019/decision-2019-MC-01.html. The U.K. Competition and Markets Authority is also investigating Amazon’s proposed acquisition of certain rights and a minority shareholding in Roofoods Ltd. (Deliveroo), a UK-based food delivery company active in 14 countries. The investigation is being conducted under the U.K.’s merger control regime. See https://www.gov.uk/cma-cases/amazon-deliveroo-merger-inquiry.